I see part of Marty's and my disagreement stems from how broadly we define "distributing contraceptives." I also see that we disagree on the baseline-- if you assume the contraception-included plan will be distributed absent an objection, as Marty does, then of course the form is not a trigger. I view that, for objecting institutions, they don't provide contraception; they sue, and thus the baseline is different.
I had neglected to think about the church plan exception impacts things; perhaps others will comment on that. On Fri, Jul 10, 2015 at 3:33 PM, Marty Lederman <lederman.ma...@gmail.com> wrote: > The notice is not a trigger for coverage. Until the notice is given, the > law requires the employer's plan to provide the coverage (still, not to > "distribute contraceptives"). When the notice is given, that obligation > shifts to the insurer or, in the case of a plan with a third-party > administrator, to that TPA, which is then reimbursed by the government. > And if, in the case of the "nuns," in particular, the plan is a "church > plan" under ERISA, then there's no longer any obligation at all > post-notice, and the employees are likely out of luck. > > On Fri, Jul 10, 2015 at 5:07 PM, Michael Worley <mwor...@byulaw.net> > wrote: > >> If the entire function of the "opt out notice" is "merely to provide HHS >> notice," surely the Gov't has already received ample notice from all >> parties that object, since they are in litigation with them. >> >> Instead of being merely being a notice issue, the form is, so far as I >> can tell, essential for providing contraception. This is what I meant by a >> "trigger." >> >> As the rules state: >> "The content required for the notice represents the minimum information >> necessary for the Departments . . . to administer the accommodation." >> >> Contraception does not flow to employees of religious objectors without >> the form. Plain and simple. >> >> Marty claims the reg is the trigger. If he is asserting that, absent any >> action by the employer, contraception will flow, and if that is correct, I >> am sorry I misunderstood the facts. However, I think my calling the form a >> "trigger" is more than fair, as it is my understanding that the form is >> essential for providing contraception. >> >> On Fri, Jul 10, 2015 at 2:51 PM, Marty Lederman <lederman.ma...@gmail.com >> > wrote: >> >>> It's probably not wise even to engage with Michael Worley on this, in >>> light of how patently inappropriate and misleading the "forcing the nuns to >>> distribute" statement is. And even if the facts were anything like what >>> Michael describes, I don't think that many, if any, readers would >>> understand the government's reg as an effort to force nuns to *distribute >>> *contraceptives. >>> >>> But just to be clear on the facts: An objecting employer is not >>> required to "sign" anything. It is required merely to provide HHS notice >>> that it wishes to opt out. Moreover, that notice does not "trigger" the >>> provision of coverage to the employees. The coverage is triggered, and >>> cost-free access will be provided to the women in question, by virtue of >>> the HHS reg. Filing the notification of objection merely guarantees that >>> the employer *will have nothing to do with that access*. Where I'm >>> from, that's not quite the same thing as being forced to "distribute >>> contraceptives," but YMMV. >>> >>> On Fri, Jul 10, 2015 at 4:30 PM, Michael Worley <mwor...@byulaw.net> >>> wrote: >>> >>>> Marty claims this statement is absurd: >>>> >>>> "the government still won’t give up on its quest to force nuns and >>>> other religious employers to distribute contraceptives." >>>> >>>> I assume Marty thinks the statement is absurd because the only action >>>> the state is asking the nuns, etc. to take is signing a form. However, as >>>> long as signing the form is the trigger for coverage being provided, they >>>> are acting to distribute contraceptives. >>>> >>>> Signing a document can have deep moral implications in other contexts. >>>> Suppose a state cannot execute someone without a signature from the >>>> governor. No matter what the content of the form the governor has to sign >>>> is (it could say "I want to cut taxes by 5%" or even "I think the death >>>> penalty is wrong and should be illegal"), as long as signing it triggers >>>> the execution, people who oppose the death penalty will urge him not to >>>> sign. In fact, they will say he will be killing someone by signing the >>>> form. >>>> >>>> So it is here. Signing the form is the trigger for the contraceptive >>>> coverage. Thus, religious individuals won't sign as long as the form acts >>>> as a trigger. >>>> >>>> The issue is being a "trigger," not the government policy. The >>>> government is free to provide contraception to all; what Becket is >>>> concerned about is making an action by a religious individual a essential >>>> element to providing that contraception. >>>> >>>> >>>> On Fri, Jul 10, 2015 at 2:14 PM, Marty Lederman < >>>> lederman.ma...@gmail.com> wrote: >>>> >>>>> I have great admiration for the Becket Fund and its attorneys, >>>>> notwithstanding our substantive differences. But the Fund is not doing >>>>> itself any favors by promulgating absurd statements such as: >>>>> >>>>> “Just last week the Supreme Court ordered HHS not to enforce the exact >>>>> rules they finalized today." >>>>> >>>>> and >>>>> >>>>> "the government still won’t give up on its quest to force nuns and >>>>> other religious employers to distribute contraceptives." >>>>> >>>>> On Fri, Jul 10, 2015 at 3:52 PM, Scarberry, Mark < >>>>> mark.scarbe...@pepperdine.edu> wrote: >>>>> >>>>>> Here are the final regs: >>>>>> >>>>>> >>>>>> https://s3.amazonaws.com/public-inspection.federalregister.gov/2015-17076.pdf >>>>>> (via >>>>>> https://www.yahoo.com/health/breaking-birth-control-coverage-guaranteed-for-123731031997.html >>>>>> ). >>>>>> >>>>>> The Becket Fund criticizes them here: >>>>>> http://www.becketfund.org/new-hhs-mandate-rules-defiance-supreme-court/ >>>>>> . >>>>>> >>>>>> Cross-posted to conlawprof list. >>>>>> >>>>>> Mark >>>>>> >>>>>> Mark S. Scarberry >>>>>> Pepperdine University School of Law >>>>>> >>>>>> >>>>>> >>>>>> >>>>>> _______________________________________________ >>>>>> To post, send message to Religionlaw@lists.ucla.edu >>>>>> To subscribe, unsubscribe, change options, or get password, see >>>>>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >>>>>> >>>>>> Please note that messages sent to this large list cannot be viewed as >>>>>> private. Anyone can subscribe to the list and read messages that are >>>>>> posted; people can read the Web archives; and list members can (rightly >>>>>> or >>>>>> wrongly) forward the messages to others. >>>>>> >>>>> >>>>> >>>>> _______________________________________________ >>>>> To post, send message to Religionlaw@lists.ucla.edu >>>>> To subscribe, unsubscribe, change options, or get password, see >>>>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >>>>> >>>>> Please note that messages sent to this large list cannot be viewed as >>>>> private. Anyone can subscribe to the list and read messages that are >>>>> posted; people can read the Web archives; and list members can (rightly or >>>>> wrongly) forward the messages to others. >>>>> >>>> >>>> >>>> >>>> -- >>>> Michael Worley >>>> J.D., Brigham Young University >>>> >>>> _______________________________________________ >>>> To post, send message to Religionlaw@lists.ucla.edu >>>> To subscribe, unsubscribe, change options, or get password, see >>>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >>>> >>>> Please note that messages sent to this large list cannot be viewed as >>>> private. Anyone can subscribe to the list and read messages that are >>>> posted; people can read the Web archives; and list members can (rightly or >>>> wrongly) forward the messages to others. >>>> >>> >>> >>> _______________________________________________ >>> To post, send message to Religionlaw@lists.ucla.edu >>> To subscribe, unsubscribe, change options, or get password, see >>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >>> >>> Please note that messages sent to this large list cannot be viewed as >>> private. Anyone can subscribe to the list and read messages that are >>> posted; people can read the Web archives; and list members can (rightly or >>> wrongly) forward the messages to others. >>> >> >> >> >> -- >> Michael Worley >> J.D., Brigham Young University >> >> _______________________________________________ >> To post, send message to Religionlaw@lists.ucla.edu >> To subscribe, unsubscribe, change options, or get password, see >> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >> >> Please note that messages sent to this large list cannot be viewed as >> private. Anyone can subscribe to the list and read messages that are >> posted; people can read the Web archives; and list members can (rightly or >> wrongly) forward the messages to others. >> > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > -- Michael Worley J.D., Brigham Young University
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
